Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Sylvia Skratek filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and 5 C.F.R. Part 2425. The Union filed an opposition.

The Arbitrator found that the Agency violated Section 9 of a Memorandum of Understanding (MOU) between the parties concerning a demonstration project. She ordered the Agency to bargain with the Union with respect to operational and/or safety impacts of the project and, if the parties could not agree to a resolution of those impacts, she ordered the Agency to abide by the terms of Section 9 and discontinue the use of project equipment and procedures.

For the reasons that follow, we deny the Agency's exception.

II. Background and Arbitrator's Award

A. Background

The Agency proposed to implement the Capstone Demonstration Project (project) involving the use of new pilot information technology, which allows access to terrain mapping, weather information, and collision avoidance alerts, all of which are included within the Automatic Dependent Surveillance-Broadcast (ADS-B), and global positioning data, derived from Global Positioning Satellite technology (GPS). This information can be transmitted to radar screens and used by unit employees, who are air traffic controllers, to maintain the separation of aircraft. This is not the only method available to unit employees for use in maintaining separation of aircraft. They also use non-radar separation procedures and radar separation procedures, which employ a different type of technology.

The parties negotiated an MOU covering the implementation of the project. The MOU referenced specific issues that arose during the pilot testing of the project and, subsequent to its implementation, unit employees identified several problems associated with using the ADS-B technology on radar screens.

After an incident occurred involving a failure of aircraft to maintain proper separation, allegedly because of the use of ADS-B technology in conjunction with the radar screens, the Union notified management of problems in the use of that technology and, invoking Section 9 of the MOU, terminated its use for aircraft surveillance and separation purposes because of safety concerns. [n1] The Agency took the position that use of the technology had not compromised safety, and decided to continue displaying the ADS-B data on radar screens.

The Union filed a grievance claiming that the Agency's failure to terminate the use of ADS-B technology for the purpose of aircraft surveillance and separation violated Section 9 of the MOU. The parties were unable to resolve the grievance and it was submitted to arbitration.

B. Arbitrator's Award

Noting that the parties were unable to agree on a statement of the issues, the Arbitrator framed the issues as follows:

1. Is the Agency bound by Section 9 of the [project] MOU?

2. If so, did the Agency violate the MOU when it refused to grant the Union's invocation of Section 9?

3. If so, what is the remedy?

Award at 4-5.

[ v62
p91 ] According to the Arbitrator, the MOU "is designed to set forth the methods, means, and technology of performing the work of the air traffic controller" within the confines of the project. Id. at 8. The Arbitrator found that these were permissive subjects of bargaining under the Statute. The Arbitrator noted that the MOU was not disapproved by the Agency head under § 7114(c)(2) and (3) of the Statute and found that the Agency had "negotiated away its right to make decisions regarding the technology, methods and means of performing work." Id. at 9. Consequently, the Arbitrator found that "the MOU is in effect and is binding on the parties." Id. at 8.

The Arbitrator rejected the Agency's claim that Section 9 impermissibly affects its right to assign work under § 7106(a)(2)(B). Noting that the precedent cited by the Agency concerned the negotiability of proposals, the Arbitrator found that "it is not a proposal that is before the Arbitrator but rather a negotiated agreement." Id. at 9. The Arbitrator found that the Agency "willingly entered into the [MOU] which did not affect the Agency's right to assign work but did address how the Agency would perform its work." Id. at 10. The Arbitrator found that the Agency "entered into a binding [a]greement with full knowledge that Section 9 could be invoked by the Union if it determined that there was a safety or operational impact." Id. The Arbitrator concluded that, because the Union made such a determination, the Agency "violated Section 9 when it failed to terminate the use of the [project] equipment and procedures." Id.

As a remedy, the Arbitrator ordered the Agency and the Union to bargain over "the operational and/or safety impacts" of the project. [n2] Id. at 11. If such bargaining did not "result in a resolution to the operational and/or safety impacts associated with the technology," the Arbitrator ordered the Agency "to abide by the terms of Section 9 of the MOU and terminate the use of [the project] equipment and procedures." Id.

III. Positions of the Parties

A. Agency's Exception

The Agency contends that Section 9 of the MOU is not enforceable because it "precludes the Agency from [requiring] controllers to use the [project] equipment and procedures." Exception at 3 (emphasis in original). According to the Agency, as enforced by the Arbitrator, Section 9 allows the Union, at its "whim, to turn off the ADS-B capability that displays aircraft information to controllers, and which controllers use to control air traffic." Id. at 3-4. The Agency asserts that, as enforced, Section 9 affects, and excessively interferes with, management's right to assign work under § 7106(a)(2)(B). The Agency cites Authority precedent finding that proposals that preclude management from assigning particular duties to employees, or determining when duties may be performed, affect the right to assign work. Specifically, the Agency cites Fraternal Order of Police, Lodge #1F, 57 FLRA 373, 374-75 (2001) (Lodge #1F).

The Agency "admits to negotiating on the technology, methods and means of performing work." Id. at 7. The Agency maintains, however, that "[a]s written, Section 9 confers on the [U]nion the authority to shut down an agency operation, impermissibly interfering with management's right to determine its mission, assign work, and act at all." Id. According to the Agency, § 7106(b)(1) allows unions to negotiate "on the technology, methods and means of performing work, not whether they will use that technology, methods and means to perform work." Id. (emphases in original). As to the Arbitrator's finding that the Agency was too late in claiming Section 9 is unenforceable because it agreed to the MOU, the Agency contends that "there is no time limit under which such a declaration may be made." Id. at 8.

B. Union's Opposition

The Union contends that the Arbitrator "correctly found that negotiations concerning ADS-B were done pursuant to [§ 7106(b)(1)]." Opposition at 3. According to the Union, neither the parties' agreement nor law specifies "any methods or technologies that air traffic controllers must use in the separation and control of air traffic." Id. (citing Article 17, Section 4 of the parties' collective bargaining agreement and 5 U.S.C. § 2109(1)(A)(i)). Rather, the Union asserts, air traffic controllers "employ various methods and utilize numerous technologies in separating airplanes." Id. The Union also states that the "rules pertaining to the amount of separation required between airplanes depends on the type of methods and technology being used." Id. at 4. The Union maintains that, because "ADS-B is a technology and merely one accepted method related to the duty of separating airplanes, its use was fully negotiable under [§ 7106(b)(1)], if the Agency chose to do so." Id.

The Union argues that the Agency negotiated on the use of ADS-B as a "technology, methods and means" of performing the duties of controlling and separating [ v62
p 92 ] aircraft and it "must abide by its agreement." Id. The Union claims that "once an agency agrees to provisions related to technology[,] methods and means under [§ 7106(b)(1)], it `is enforceable through grievance arbitration.'" Id. (quoting United States Dep't of Labor (OSHA), 34 FLRA 573, 577 (1990)).

Finally, the Union asserts that "the use of ADS-B technology pertains to how a controller separates airplanes and does not pertain to the actual performance of those duties." Id. at 5. According to the Union, Section 9 does not limit to whom the Agency may assign certain duties. Rather, the Union maintains, unit employees will "always perform the duties of separating and controlling airplanes; . . . [t]he only variance is the methods and technologies they use[.]" Id. In this regard, the Union asserts that "removing ADS-B technology from [r]adar scopes does not impact the operation or the mission of the Agency" because air traffic controllers "continue to separate aircraft . . . regardless of the technology and methods they use." Id. at 6.

IV. Analysis and Conclusions

The Agency claims that the award is contrary to law, specifically, management's right to assign work under § 7106(a)(2)(B) of the Statute. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See, e.g., NLRB, Washington, D.C., 61 FLRA 154, 160 (2005) (NLRB). If it does, then the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146, 151-54 (1997) (BEP).

Under the BEP framework, the Authority applies a two-prong test to determine if the award is deficient. BEP, 53 FLRA at 152-53. Under prong I, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a provision in the agreement that was negotiated pursuant to § 7106(b) of the Statute. Id. at 153. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or provision in the agreement at issue. Id. at 154.

It is not necessary to determine whether Section 9, as interpreted and applied by the Arbitrator, affects management's right to assign work because, even if it does, the Agency has not shown that the award is deficient under prong I or prong II of BEP. See United States Dep't of Veterans Affairs, West Palm Beach VA Medical Ctr., West Palm Beach, Fla., 61 FLRA 712, 714 (2006). In this regard, the Agency specifically concedes that it elected to bargain on, and agreed to, matters relating to the technology, methods and means of performing the Agency's work within the meaning of § 7106(b)(1) of the Statute. Section 7106(b)(1) is an exception to § 7106(a) such that bargaining over matters encompassed by § 7106(b)(1) is permitted notwithstanding that those matters also affect rights under § 7106(a). See United States Dep't of the Treasury, IRS, Washington, D.C., 56 FLRA 393, 395 (2000) (IRS) (citing Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir. 1994) ("§ 7106(b) is indisputably an exception to § 7106(a)")). In this regard, Lodge #1F, relied on by the Agency, is distinguishable because in that decision the Authority found that the matter in dispute was not encompassed within § 7106(b)(1).

As Section 9 is a permissive subject of bargaining, the Agency was not obligated to bargain on it. However, once it agreed to that provision, it became fully enforceable through the negotiated grievance procedure notwithstanding its possible eff